Opinion
J-S58023-19 No. 400 WDA 2019
01-21-2020
COMMONWEALTH OF PENNSYLVANIA v. TIMOTHY C. SAUNDERS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered February 11, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002794-2016 BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Timothy C. Saunders, appeals from the post-conviction court's February 11, 2019 order, denying his timely petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
A previous panel of this Court set forth the relevant facts and procedural history underlying Appellant's case as follows:
[Appellant's] convictions arose from [his] actions on June 22, 2016[,] in setting fire to the vehicle of a former girlfriend, Deborah Lynn Marshall, in a parking lot at Eaton Reservoir, a/k/a Bulls Dam, in North East Township, Erie County, Pennsylvania. That day, while Marshall was walking with her dog around the reservoir, Appellant met up with her and made unwanted advances toward her. When Marshall rejected the advances, Appellant became angry and acted aggressively toward Marshall. Marshall ran from Appellant toward her vehicle, a 2004 green Jaguar. Appellant followed Marshall, entered his own vehicle and drove into the lot where Marshall's vehicle was parked. Appellant parked right beside Marshall's Jaguar, in the space in between the Jaguar and the space where the vehicle of Scott Bigley was parked. Bigley, a friend of Marshall's, was
sitting in his vehicle waiting for Marshall to return from the walk. Marshall spotted Bigley, quickly got inside his vehicle and asked him to drive away to escape from Appellant. Confused, Bigley began to drive away. Appellant continued toward Bigley's vehicle and struck Bigley's windshield on the passenger side with his fist, cracking the windshield. Bigley and Marshall drove off. They stopped at a nearby establishment where they called friends to assist them in retrieving Marshall's vehicle. Approximately [twenty] minutes or so after Bigley and Marshall had fled the reservoir parking lot, Bigley and one of the friends returned to the parking lot where they found the back portion of Marshall's vehicle engulfed in flames. Firefighters and emergency personnel were called to the scene and the fire was extinguished. The evidence established the fire to Marshall's vehicle originated on the rear passenger side; the fire was incendiary in nature and Appellant caused the fire.
Commonwealth v. Saunders , No. 445 WDA 2017, unpublished memorandum at 1 (Pa. Super. filed Feb. 9, 2018) (some brackets added; footnote and citation omitted).
On December 20, 2016, at the conclusion of a nonjury trial, the trial court convicted Appellant of [one count each of reckless burning or exploding, 18 Pa.C.S. § 3301(d)(2), and arson involving danger of death or bodily injury, 18 Pa.C.S. § 3301(a)(1)(i)]. On February 1, 2017, the trial court sentenced Appellant to serve a term of incarceration of twelve to twenty-four months for the conviction of reckless burning or exploding, and a concurrent term of incarceration of forty-eight to ninety-six months for the conviction of arson involving danger of death or bodily injury. In addition, the trial court ordered Appellant to pay restitution in the amounts of $250.00, which was for the insurance deductible for Ms. Marshall's vehicle that was destroyed by the fire, and $300.00, which was for the broken windshield of Mr. Bigley's vehicle.
On direct appeal, this Court affirmed the part of Appellant's judgment of sentence regarding his convictions (i.e., it rejected his sufficiency and weight-of-the-evidence claims), but vacated the portion of his judgment of sentence relating to the award of restitution of $300.00 for the broken windshield of Mr. Bigley's vehicle. Thereafter, Appellant filed a petition for allowance of appeal to our Supreme Court, which was denied on August 13, 2018. See Commonwealth v. Saunders , 190 A.3d 1134 (Pa. 2018).
On October 10, 2018, Appellant filed a pro se PCRA petition, his first. The PCRA court subsequently appointed counsel, who filed a supplement to Appellant's petition on November 29, 2018. On January 2, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition, and Appellant did not file a response. On February 11, 2019, the PCRA court entered an order dismissing the petition. On March 11, 2019, Appellant filed a timely notice of appeal. The PCRA court directed him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and he timely complied.
Presently, Appellant raises the following issues for our review:
A. Whether the bench trial record before the [c]ourt as to the instant case afforded circumstantial evidence at best and was more so speculative and [constituted] conjecture as to whether the fire was even incendiary in nature or where it started and certainly as to whether there was any nexus to [Appellant] as the cause and thus there was insufficient evidence to sustain the guilty verdicts as the Commonwealth failed to prove that the fire was incendiary in nature; that anyone was placed in danger of death or bodily injury; and that [Appellant] even set the fire?
B. Whether the conviction for reckless burning was without any legal predicate wherein the value of the vehicle involved did not satisfy the statutory elements?
C. Whether [d]efense counsel was ineffective in various respects as outlined in the pro se PCRA [p]etition and supporting appendix?
D. Whether the amended information charged at count 3, endangering persons, was fatally deficient given that a victim is not designated?Appellant's Brief at 2.
E. Whether the Commonwealth violated [Appellant's] right to due process by amending the information on the day of the trial to include an additional offense in direct violation of the Pennsylvania rules of criminal procedure?
F. Whether counsel failed to investigate and offer exculpatory evidence that was available and would have changed the outcome at trial as enumerated fully in the pro se pleadings?
G. Whether the sentence was outside of the sentencing guidelines and was illegal given an error in the calculation of [Appellant's] prior record score?
H. Whether the [c]ourt and the Commonwealth discussed the case in chambers prior to trial and not in open court in violation of rules proscribing ex parte communications?
At the outset, we acknowledge:
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012) (internal citations omitted).
Before delving into Appellant's issues, we must address the deficiencies in his brief. Although Appellant raises eight issues in his statement of the questions involved, his argument section spans a mere four-and-a-half pages and contains citations to only six cases. In each of his issues, Appellant includes no citations to the record, fails to adequately discuss relevant law, and proffers little (if any) meaningful legal analysis in relation to the facts of his case. Thus, we deem all of Appellant's claims waived on this basis. See Pa.R.A.P. 2119(a) ("The argument ... shall have at the head of each part ... the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent."); Coulter v. Ramsden , 94 A.3d 1080, 1088-89 (Pa. Super. 2014) ("[A]rguments which are not appropriately developed are waived. Arguments not appropriately developed include those where the party has failed to cite any authority in support of a contention. This Court will not act as counsel and will not develop arguments on behalf of an appellant.") (citations and internal quotation marks omitted).
Further, we do not consider these six citations to be insightful and, at times, even applicable to the matter at hand. For example, Appellant cites to Commonwealth v. Stefaniak , 571 A.2d 506 (Pa. Super. 1989), for the proposition that "[a] conviction for arson or reckless burning cannot be supported or attained where one intentionally burns one's own vehicle or even the vehicle of another which is valued less than $5,000.00[,]" see Appellant's Brief at 5. Problematically, our review of that case demonstrates that it is a non-precedential memorandum, and does not involve the crime of arson or reckless burning, but instead the offense of driving under the influence.
To illustrate, Appellant argues that his counsel was ineffective, yet fails to set forth and discuss any law pertaining to ineffectiveness. See Appellant's Brief at 5, 6.
We recognize that Appellant's issues include a purported legality of sentence claim, which is generally not waivable. However, his claim is that his "prior record score was incorrectly calculated and thus caus[ed] a skewed set of guidelines applied by the court." Appellant's Brief at 8 (unnecessary capitalization and emphasis omitted). This argument raises a challenge to the discretionary aspects of his sentence, not the legality of it. See Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa. Super. 2003) (treating the appellant's claims regarding the alleged miscalculation of his prior record score and the consequent excessive sentence as a challenge to the discretionary aspects of his sentence). Thus, it is waived.
Nevertheless, even if not waived, we would conclude that Appellant's claims have no merit. We have reviewed the comprehensive analysis provided by the Honorable Daniel J. Brabender, Jr., of the Court of Common Pleas of Erie County, in his January 2, 2019 "Notice of Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907," which he incorporated by reference in his May 8, 2019 opinion issued pursuant to Pa.R.A.P. 1925(a). We conclude that Judge Brabender's analysis accurately and thoroughly disposes of the issues raised by Appellant. Accordingly, if Appellant's issues were not waived, we would adopt Judge Brabender's analysis as our own with respect to the issues Appellant raises on appeal.
We only add that, with respect to Appellant's last issue alleging that his rights were violated because the Commonwealth and the trial court discussed the case in-chambers before trial, the part of the record to which Appellant apparently cited to support this claim in his petition demonstrates that defense counsel was also present for this discussion. See PCRA Petition, 10/10/2018, at 30 (citing N.T. Trial, 12/20/2016, at 51-53); see also PCRA Petition at 11. Thus, based on the reference to the record provided by Appellant, we would reject Appellant's argument that ex parte communications occurred.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/21/2020
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